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REVIEW 



OF THE 



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|tef0t1 A % ljuiiciarj. fommittee 



OF THE 



HOUSE OF REPRESENTATIVES, 

Recommending the Passage of Bill No. 65, for the Relief of 
William McGarrahan, reported May 8, 1868. 



McGm. & Withebow. Printers & Stereotypcrs, Wa>h:n«ion. D> 



I 







EEVIEW 



OF THE 



REPORT OF THE JUDICIARY COMMITTEE 



OF THE 



HOUSE OF REPRESENTATIVES, 

Recommending the Passage of Bill No. 65, for the Belief of Wil- 
liam McGarrahan, reported Mag 8, 1868. 



±he report begins as follows: 

" The history of this case is composed of such a multitude of circumstances, 
spread over a period extending from the year 1844 to the present time, that to 
give it in detail would be to present a report so voluminous as to defeat the very 
object contemplated by the House in submitting it to the committee, that of 
information to its members. 

" It has, therefore, been deemed advisable to exhibit leading and controlling 
facts rather than minute and unimportant particulars." 

This report, then, does not purport to give all the facts of 
the case ; it pretends only to give what the committee esteem 
"leading and controliing facts." 

If it was the object of the committee to pick out those cir- 
cumstances best calculated to display the treachery and fraud 
which have distinguished this case from its inception to the 
present moment, they have been very unfortunate in their 
selection. The true character of the "relief" sought by Mr. 
McGarrahan can be much better understood by a briefer nar- 
ration of the facts than that furnished by the committee. For 
the correctness of the recital about to be made, we appeal to 
the opinions delivered by the Supreme Court of the United 
States in the case of The United States vs. Gomez, reported in 
23 Howard, 1 Wallace, and 3 Wallace. 

On the 9th of February, 1853, one Vicente Gomez, who had 
been a clerk in the departmental government of Monterey, 



under the Mexican rule, by Pacificus Ord, his attorney-at- 
law, presented to the board of land commissioners, under the 
act of March, 3, 1851, entitled 'An act to ascertain and set- 
tle the private land claims in the State of California,' a peti- 
tion praying the confirmation of his claim to a tract of land 
called 'Panoche Grande,' of the extent of four square leagues, 
and alleged as the foundation of* the claim that the tract was 
granted to him in the year 1844, by Governor Manuel Michel- 
torena. He filed no documentary evidence of his title, claim- 
ing that the title papers were lost about the time the military 
and naval forces of the United States took possession of Mon- 
terey. He attempted by parol proof, before the commission- 
ers, to show their existence, loss, and contents. He claimed 
in his petition four square leagues of land. The only docu- 
ment introduced in support of it, purported to be his petition 
to the Governor, and this document represented the original 
claimant as having asked for but three leagues. There was no 
concession or grant, nor was there any evidence that any title 
of any kind was ever issued by the Governor to the claimant. 
He stated in his petition that he had obtained the map in the 
record from the proper officers of the department, but the 
alleged fact was not satisfactorily proved. Four witnesses 
were examined by the claimant before the land commissioners, 
but only one of the number pretended that he had ever seen 
the grant, and his statements were rejected by the commis- 
sioners as indefinite and unsatisfactory, for sufficient reasons. 
He never proved possession under the grant ; and, on the con- 
trary, it was shown that he had never occupied it at all, and 
never even saw the premises during the Mexican rule. 

This man Gomez was one of the witnesses in the celebrated 
Limantour case. The judge of the United States district court 
for the northern district of California, in delivering his opinion 
in that case, reviewed the testimony of this Gomez, his ante- 
cedents, and the evidence touching his character for truth and 
veracity. The result was, that the testimony of Gomez was 
rejected as utterly worthless. Jose Abrego was the witness 
who testified before the board to the fact of having seen this 
grant to Gomez. Abrego was also an important witness in the 



Limantour case; he, too, was declared by the district judge to 
have been guilty of perjury. (See report of this case, 1 Hoff- 
man, 390-6, 7, 8, 420, 426, 428.) We refer to this exposition 
of the characters of these two individuals, because much stress 
is laid by the committee on the fact that the board found that 
Gomez had given satisfactory proof of the existence and loss 
of the grant. Now, this finding, resting upon the statement 
of Gomez and the testimony of Abrego, imports nothing, in 
view of the subsequent light thrown upon the characters of 
these two individuals. 

At most, the board only expressed the opinion that Gomez 
had received and lost a grant. But Gomez had something else 
to do besides showing that he had received a Mexican grant; 
it was necessary to show where it was located, and what were 
its precise boundaries. This the willing Abrego could hardly 
be expected to recollect, and to supply this difficulty Gomez 
trumped up a most improbable story, and one that has no 
other basis for its support but his own blasted reputation for 
veracity. 

Gomez was a clerk in the office of the Mexican commissary 
at Monterey. He stated that he deposited his grant in a 
pigeon-hole in the commissary's desk, and that when the 
Americans seized the papers of this official, in 1846, this 
grant was captured also. We would, in passing, call atten- 
tion to the improbability of this part of the statement of 
Gomez. His witness, Dr. Ord, testifies that these public 
papers, considered worthless, were used by his steward for 
wrapping-paper. Gomez was then a resident of Monterey ; 
what prevented him from rescuing his grant from this lot of 
waste and unregarded paper? But, we proceed. He proved 
by Abrego that he had seen the grant. To establish the 
locality, Gomez produced a map or plan, which purported to 
be the original diseiio that accompanied his petition. This 
map, if it were what it purported to be, belonged to the Mexi- 
can archives, which were at that time in the custody of Manuel 
Jimeno, one of the best and most faithful of Mexican officials. 
Gomez, who was a Government clerk, understood that it was 
necessary to account for the singular fact that this map or 



diseno, which accompanied his petition, and which, together 
with it, should have been carefully preserved in the archives, 
was found in his possession. Hence, he says he borrowed it 
under a promise to return it, which promise he never fulfilled. 
This much Gomez, or the attorney who drew his petition, 
understood, and hence this very lame explanation. But 
Abrego, who is not so well versed in the matter of Mexican 
grants, when he comes to depose to the fact of having seen 
this map in the possession of Gomez, says it was attached 
to the grant. Abrego did not know that the diseno should 
have been attached to the petition and not to the grant. 
But another difficulty suggested itself to the mind of the 
ingenious Gomez. It would naturally be asked, how did 
it happen that the map was not captured together with 
the grant. Anticipating this question, Gomez states that 
while he kept the grant, the only evidence of his title, in 
a pigeon-hole of the commissary's desk, he deposited, for 
greater security, the map, which Abrego says was attached to 
the grant, in his own trunk at his house in Monterey. No 
doubt the contradictions and absurdities of this story were 
apparent to the board, but they made no comment on them, 
because they could dispose of the claim upon less offensive 
grounds. They, accordingly, rejected the claim upon the 
ground that Gomez never cultivated, or had even seen, the land. 
Nor has this ground of rejection ever been overruled by the 
Supreme Court, as the committee would have us suppose. 
That court did hold that occupation and cultivation were not 
absolutely requisite to the perfection of a Mexican title; that 
circumstances might furnish an excuse for such an omission. 
Thus, in Fremont's case, it was enough that it appeared that 
the grant was located in a wild and unsettled part of the coun- 
try, where the hostility of the surrounding Indians rendered 
settlement dangerous, if not impossible. But no such difficul- 
ties are pretended in this case. On the contrary, the land 
claimed by Gomez is located within thirty or forty miles of 
San Juan Bautista, one of the oldest missions in the territory. 
One of the witnesses in this case swears that he had lived 
for twenty years adjoining this property, and that he had 



never heard of the name of Gomez in connection with it. And 
here let us remark, that there is not one of the grants made 
by the American Congress, referred to by the committee as 
precedents for this bill, in which the grant was not based upon 
the fact of long and continued occupation upon the part of the 
grantee. The equitable rights accruing from occupancy, the 
staple of all former bills of this sort, are here totally ignored. 
But to proceed with the history of the case. From the de- 
cision of the board rejecting this claim an appeal was taken 
to the district court. Pacificus Ord, the original counsel for 
the claimant, to whom Gomez had conveyed one-half of his 
interest in this grant, had now become the district attorney of 
the United States for the southern district of California. The 
papers in the cause were first filed in the office of the clerk of 
the northern district. An entry in the minutes of the clerk 
states that upon motion, signed by Hartmann and Sloan, an 
order was made for the transfer of the cause to the southern 
district. Mr. Sloan swears that the use of his name was unau- 
thorized; that he had never been employed by the petitioner, 
and at that time had never heard of the cause. The letter of 
the clerk of the northern district to the clerk of the southern 
district, enclosing the papers with the order of transfer, is 
dated June 1, 1857. It could not have reached Los Angeles 
before June 3, most probably it arrived on June 4. On the 
5th of June, Ord procures one Hartmann to move the court 
to confirm this grant, and Ord then gets up and states that on 
the part of the United States no objection is made to the mo- 
tion; whereupon, without argument and without considera- 
tion, upon the consent of both parties, Ord, through Hart- 
mann, consenting for himself and Gomez on the one part, and 
Ord, as district attorney, consenting for the United States on 
the other part, an order for a decree of confirmation is made 
by the court. This was, as usual in equity, an order directing 
a decree to be drawn by counsel in pursuance of the expressed 
views of the court, the decree to be signed by the judge, and 
eventually entered. But Mr. Ord, in his double capacity of 
counsel for the claimant and counsel for the United States, 
neglected to draw the decree at that term of the court. It 



6 

was not until the January following that this attorney seems 
to have become aware of the insufficiency of this order, and 
the necessity of the actual signing and entry of the decree. 
Then he drew the decree, and again, through Hartmann, who 
swears he acted only at the request and instance of Ord, the 
United States, that is Ord, consenting, the final decree is en- 
tered nunc pro tunc, that is, on January 7, 1857, as of June a 
5, 1857. ' 

This decree was for three leagues of land. Leave was ob- 
tained, February 5, 1858, to amend this decree, and make it 
a confirmation of four leagues, instead of three. It will be 
remembered that Gomez, in his original application to the 
board of commissioners, swore that his lost grant was for four 
leagues of land. His petition to the Mexican Governor, which 
happened to be preserved in the archives, at that time care- 
fully guarded by Capt. Halleck, being produced, showed that 
he had only asked for three leagues. The liberal district at- 
torney did not hesitate a moment to consent, on the part of 
the United States, that Gomez and himself should have a league 
more than Gomez had asked for. 

Ord's interest in this grant was unknown to the judge of the 
district court, whose integrity no man ever questioned. When 
he became acquainted with the character of this nefarious 
transaction, upon the motion of the district attorney Who suc- 
ceeded Ord, he made an order revoking the decree of con- 
firmation which he had been fraudulently induced to sign. 
At this stage of the proceedings, Judge Ogier died, and was 
succeeded by Judge Haight. This officer vacated the last order 
of his predecessor, upon the ground that it was improvidently 
granted, the court having lost jurisdiction of the cause after 
the expiration of the term at which the decree of confirmation 
was entered. 

Next came a series of proceedings in reference to an appeal 
from this decree of confirmation to the Supreme Court of the 
United States. Of these proceedings, a recital of which would 
be tedious, it is enough to say that they were marked by the 
same badges of fraud and trickery upon the part of the claim- 
ant that distinguished the proceedings in the court below. For 



some time it was questioned whether the United States, by the 
treachery of her officer, had not lost the right of appeal. The 
points arising under this branch of the case are considered and 
decided in The United States vs. Gomez, 23 Howard, 339, and 
1 Wallace, 702. In these two cases, the facts, of which the 
foregoing is a brief abstract, are stated by the court, and the 
conduct of the claimant, Ord, is made the subject of the severest 
comment. The court holding, as Chancellor Walworth once 
said, that a court of equity will go through a stone wall to get 
at fraud, broke through all the barriers that ingenuity and 
treachery had interposed to a judicial decision of this case, 
and having once decided that the case and the parties were 
still within the reach of the court, made short work of both. 
They unhesitatingly reversed the decree of confirmation, and 
ordered the petition to be dismissed. This final decision is 
reported in 3 Wallace, p. 733. The opinion of the court con- 
cludes as follows: 

" Regarding the case as regularly before the court, it becomes necessary to ex- 
amine the merits of the claim. Some suspicion attaches to it, because it is made 
for four leagues of land ; whereas the only document introduced in support of 
it, which is of the least probative force, represents the original claimant as having 
asked for but three leagues. The document referred to purports to be a petition 
of the claimant to the governor ; and there is appended to it the usual infdrme ; 
but there is no concession or grant, nor is there any satisfactory evidence that 
any title of anjr kind, was ever issued by the governor to the claimant. He 
states in his petition to the land commissioners that he obtained the map or 
record from the proper officers of the department ; but the alleged fact is not 
satisfactorily proved. Four witnesses were examined by the claimant before 
the land commissioners, but ouly one of the number pretended that he had ever 
seen the grant, and his statements are quite too indefinite to be received as sat- 
isfactorily proved. 

" Instead of proving possession under the grant, it is satisfactorily shown that 
he never occupied it at all, and it is doubtful if he ever saw the premises during 
the Mexican rule. The land commissioners rejected the claim ; but before it 
came up for hearing in the district court, his attorney had been appointed dis- 
trict attorney of the United States, and the proof shows that he conveyed two 
leagues of the land to the district attorney. The circumstances of the confirma- 
tion of the claim in the district court are fully stated in the opinion of the court, 
when the mandate was revoked* and recalled. (United States vs. Gomez, 23 
Howard, 3, 39.) Comment upon those circumstances is unnecessary, except to 
say that the confirmation was fraudulently obtained. 

"Although the decree was fraudulently obtained, still, inasmuch as it is cor- 
rect in form, it is sufficient to sustain the appeal for the purpose of correcting 
the error. The party who procured it, cannot be allowed to object to its validity 
as a means of perpetuating fraud ; especially as he did not appeal from the decree. 
The decree of the district court is, therefore, reversed, and the case remanded, 
with directions to dismiss the petition." 

And it is the perpetrators of these frauds, a perjured claimant 



8 

and a public officer thus branded by the Supreme Court of the 
United States, who present themselves at your bar and ask, on 
account of their great merits, to be made the. recipients of the 
bounty of the United States. These are the men who, in the 
embarrassed condition of the finances, ask you to bestow upon 
them public lands the value whereof exceeds a million of 
dollars. 

No, say the committee; we ask nothing for Ord and Gomez ; 
it is for this innocent purchaser, William McGarrahan, that we 
entreat your charity. 

Let us see how that is. McGarrahan purchased of Gomez, 
on the 22d day of December, 1857, before any decree of con- 
firmation had been signed or entered by the district judge. 
Gomez recites, in his conveyance to McGarrahan, (see p. 35 of 
Lawrence's report, March, 1867,) that he has already con- 
veyed one-half of his interest to Ord, and that McGarrahan 
is to take subject to that conveyance. From that moment 
McGarrahan and Ord became joint owners in, or tenants in 
common of, this grant. From this fact two consequences 
ensue: first, either this bill will make McGarrahan a trustee 
of one-half of the land for Ord's benefit, or the bill should 
be amended so as to include only one-half of the four leagues 
claimed. That is, either McGarrahan gets by this bill twice 
as much as he "innocently" purchased, or Ord gets two 
leagues of land from the Government whose trust he betrayed. 
Secondly, from the moment McGarrahan purchased he stood 
in the shoes of Gomez. Ord from that moment was managing 
the matter for the joint benefit of himself and McGarrahan ; 
in every act of fraud upon the part of Ord, McGarrahan 
acquiesced; he had no counsel ; he was represented byno one 
but Ord and (his creature) Hartmann. If he is not presumed 
to have known of the conspiracy between Ord and Gomez 
before his purchase, after that period, both in law and reason, 
he who stood by and sought to partake of all the benefits of 
this iniquity must, per force, be held responsible for all its 
enormities. The committee urge that when McGarrahan pur- 
chased, the fraudulent action had been completed, the title in 
Gomez had been perfected, and that McGarrahan purchased 



9 

this apparently perfect title in entire ignorance of the means 
by which it was procured. Nobody who reads this record 
can come to such a conclusion. When Mr. McGrarrahan pur- 
chased, the first step only in this long chain of fraud had been 
taken by Ord. Where was the innocent McGarrahan from 
December 1857 to the final decision of this case in 1865? 
Not even a silent spectator of Ord's fraudulent doings, but, 
in one instance, at least, he is suspected of being an active par- 
ticipator. We say so because the Supreme Court proclaims 
the fact that the clerk of the district court furnished a false 
statement of the entry of a certain order in this cause, and 
they suggest that it may have been done at the instance of the 
interested parties. Upon this point the court say: 

" Mr. Sims, the clerk of the court, (the court for the southern district of 
California,) deposes that in this case a transcript was called for by letter signed 
"W. W. McGarrahan ; that when that letter was received no appeal had been 
allowed to carry the case to the Supreme Court, and that a motion for that pur- 
pose was still under the advisement of the court. The deputy clerk, Mr. Cole- 
man, however, sent to McGarrahan a transcript, which was received by Mc- 
Garrahan, and that not being satisfactory, it was returned to the clerk with a 
letter from McGarrahan, stating in what particulars it was deficient, and among 
them it was deficient in not having a copy of the order for an appeal to the 
Supreme Court, (italicised as in the report,) which McGarrahan suggested would 
be found in the minutes of the court. To this letter a reply was given by Mr. 
Stetson, who had succeeded Mr. Coleman as deputy, containing an order for an 
appeal, as it appears in the transcript before us. It is difficult to determine 
how such an order found its way into the second transcript of the record, when 
it was not in the first, and when the clerk deposes that no such order had ever 
been given. The order for an appeal may have been drawn in anticipation of 
the action of the court upon the pending motions, and left in the clerk's office 
unintentionally, and supposed by the deputy clerk to have been passed by the 
court ; or it may have been drawn by Mr. Ord and left in the office to keep up 
the semblance of his having faithfully represented the United States in the 
case ; or it may be that some one of the parties interested in the land had sur- 
reptitiously placed it in the transcript to accomplish the purpose of having the 
case docketed and dismissed in this court. Dates will in some measure throw 
light upon the matter. It was written and dated on the same day that the 
court took under its advisement the motion relating to the appeal. Such an- 
tagonism in the action of the court upon the same subject matter, of such im- 
portance as this was, would indeed be extraordinary, and the record shows 
that it does not exist. It is a delicate and most unwelcome task which we are 
performing, but it must be done in order that violated justice may be vindi- 
cated, and that official purity of conduct in our courts may be preserved and be 
unsuspected." (23 Howard, 338.) 

And now for the use to which this interpolated order for 
appeal might be put ; it was the very use to which it was ac- 
tually applied. The case was docketed, and the appeal was 
dismissed upon the motion of the appellee, that is, upon the 
motion of the Protean Ord, who now appears as Gomez, now 



10 

as McGarrahan, and now as the United States. So it is: Ord, 
as the United States, simulates an order for appeal; Ord, as 
the United States, omits to file the record, within the time re- 
quired; and then Ord, as McGarrahan, procures an order of 
dismissal, because of the laches of the United States; which, 
it is presumed, will operate as a confirmation of the decree 
fraudulently obtained against the United States in the court 
below. And such would have been the result, but that the 
Supreme Court recognized a fundamental principle outlying 
the moral sphere of the conspirators, viz, that a court of 
justice never loses control of an order procured by fraud or 
misrepresentation. 

But suppose Mr. McGarrahan innocent of any actual parti- 
cipation in the frauds of Gomez and Ord, his claim must, 
nevertheless, be tainted by the foul source from which it is 
derived. What avails the rule that a party can gain nothing 
by his own fraud, if the fraudulent title is to be good in the 
hands of an innocent purchaser? Establish such a precedent, 
and you at once offer a premium for fraud, by giving the 
otherwise worthless title a market value. It is unimportant 
to the United States, if she is to be cheated out of her prop- 
erty by the fraud of Gomez and Ord, whether the fraud of 
Gomez is to accrue to his benefit or that of his assignee. 

Up to this point we have been engaged in showing that Mc- 
Garrahan has no claim upon the Government for either four, 
or three, or even two square leagues of land, located in any 
part of California. Now we propose to show, even more con- 
clusively, that it would be not only a wrong to the Govern- 
ment, but the greatest injustice to individual citizens, to be- 
stow upon him the particular four leagues embraced in this, 
bill. 

At a very early period in the history of these land claims, 
it was found that by means of false and fraudulent surveys, 
grants of agricultural lands were located upon more valuable 
tracts in the mineral regions. These surveys were privately 
made, at the instance and for the benefit of the claimant, and 
were immediately transmitted to the General Land Office at 
the seat of Government. Thus, it was only by a journey of 



11 

thousands of miles, and at great expense, that an opportunity 
of examining and contesting the integrity of these surveys 
could be procured by the settlers or others whose occupany or 
rights were affected by them. To remedy this evil, an act was 
passed, approved June 14, 1860, making it the duty of the 
surveyor general to give notice for at least sixty days, in 
some paper published in Los Angeles, of every survey of lands 
lying in the southern district of California, the plat being in 
the meantime retained for examination in his office at San 
Francisco, with leave to settlers and others in interest to 
question its correctness. By an act of 1864, the time of re- 
tention was extended to ninety days. 

On the 26th day of June, 1860, McGarrahan made applica- 
tion to the surveyor general of Calfornia for a survey of the 
Panoche Grande. This application seems to have been for- 
warded to the General Land Office, and on September 4, 1860, 
the Secretary of the Interior responds by interdicting the 
survey. Notwithstanding this, a private survey is made under 
an act of 1862, which affords no warrant for a patent, and it 
is this secret survey, unpublished and undisputed simply be- 
cause unknown, that marks the boundaries of the land which 
McGarrahan asks Congress to grant him, upon the presump- 
tion that it is a correct plat and survey of the land confirmed 
to Gomez by the decree of the district court. (See. Reports 
Nos. 1 and 3 of Commissioner Edwards, pp. 7 and 10 of House 
Report of Judiciary Committee, March, 1867, on bill for relief 
of Wm. McGarrrhan.) 

The Judiciary Committee of 1868 cannot understand how 
it was that that excellent officer, the Commissioner of the Gen- 
eral Land Office, so pertinaciously resisted all the influences 
brought to bear upon him to procure a patent for McGarrahan, 
based upon this survey. If the members of that committee 
will take the trouble to read their own report of last year, their 
wonder will cease. They will learn that this survey, publi- 
cation of which was studiously avoided, so far from being even 
prima facie evidence of the true locality of the Panoche 
Grande, justifies the presumption that it is fraudulent, upon 
the principle that iniquity ever prefers darkness to light. 



12 

Never was there an act in relation to these land claims more 
wholesome, and for which the poor settlers of California feel 
more grateful to Congress, than that requiring the publication 
of these surveys, and the opportunity afforded to contest them. 
It is the provisions of this act that McGarrahan petitions the 
very body that passed it, to ignore ; an injustice which the Com- 
missioner refused to consummate. 

The cautious conduct of the Commissioner has been fully 
vindicated by the result. It now appears (an examination of 
the map for 1866, erf private land claims in California, will 
show it) that this land, which Gomez sought with the view of 
dedicating himself to the charming and flourishing pursuit of 
agriculture, (the language of his petition is, " Deseando de 
dedicarme al hermoso y naciente ramo de la agricultural) has 
been located in a mountainous and sterile region, far removed 
from the sweet vale of the Panoche Grande; and this, simply 
because Mr. McGarrahan, the successor of Gomez, affects 
rather the rude excitement of a miner's life than the soft and 
delicious repose of an agriculturist. Never before did the suc- 
cessor to an estate differ so much in taste from his predeces- 
sor. The only objection that can well be made to this change 
of location proposed by Mr. McGarrahan is, that it dispossesses 
of certain mineral property, which for the last fifteen years they 
have occupied and developed at immense expense, hundreds 
of those hardy adventurers to whose enterprise and courage 
this country is indebted for so much of her greatness, and 
whom the committee sneeringly designate as "squatters." 

Vicente Gomez, in his petition to the board of commission- 
ers, states that the land described in his lost grant was bounded 
on the north by the lands of Julian Ursua, and on the south 
by the lands of Francisco Arias. This places him north of 
Arias; and yet the unpublished survey of 1862, adopted and 
ratified by McGarrahan's bill, locates this claim of Gomez six- 
teen miles to the south and east of the rancho of Don Francisco 
Arias, and instead of adjoining the rancho of Ursua, the fraudu- 
lent survey places the northern point of the Panoche Grande 
twenty miles south of the southern line of Ursua. These 
facts will appear from an examination of the plats of these 



13 

several ranches returned to the General Land Office, and of the 
map of private land claims in California for the year 1866, on 
which both the ranch of Arias and the Panoche Grande survey 
of 1862 are delineated.* The evident object of this slipping the 
valley of the Panoche Grande down to the sterile mountains of 
San Carlos, was to cover the quick-silver mines lying near the 
southern boundary of the survey, and which are all of thirty 
miles south of the ranch of Arias. 

As to the merits of Gomez and his right to a patent, these 
are questions that have been passed on after long and patient 
investigation, both as to the law and the facts, by the tribunals 
charged by the Government with the investigation of this sub- 
ject. Never have a foreign people, coming under a new juris- 
diction, met with more liberal consideration than has been 
awarded the citizens of California by the Government of the 
United States. Never were liberal enactments more liberally 
construed than those relating to these land claims by the 
Supreme Court of the United States. Yet even in the exer- 
cise of this unbounded generosity, the Supreme Court could 
find no warrant to confirm this claim of Vicente Gomez. It 
was not rejected, as the committee intimate, upon any techni- 
cality. The court found, as matter of fact, that Gomez had 
never had a title to this land, and that he could claim no 
equitable consideration from occupancy and improvement ; it 
absolutely appearing that he had never seen the property. In 
short, that he had no claim to this ranch, either legal or equit- 
able, that might not be preferred by any other citizen or resi- 
dent of California. 

Such questions are much better fitted for the judicial than 
the legislative forum. So thought the Congress of 1851, 
who turned over the whole subject to the tribunals desig- 
nated in the act of March 3, of that year. It will be an 
unfortunate day for the country, and for Congress itself, 
when the legislature undertakes to hear appeals from the de- 
cisions of the court. We know that the committee who have 
recommended the passage of this bill disavow any intention 



* See also certificate of the Commissioner of the General Land Office — Ap- 
pendix No. 2. 



14 

to reverse the decision of the Supreme Court in this case ; but, 
besides that a pamphlet signed by William McGarrahan has 
been privately circulated, criticizing in the severest manner 
the decision of the court and the conduct of Mr. Justice 
Cliiford in particular, we maintain that the passage of the 
proposed bill would itself be a virtual reversal of the decision. 
The decision of the court is that no patent should issue to 
Gomez and Ord ; this bill provides that a patent shall issue 
to Ord and the assignee of Gomez. 

But it is said that, under the decision, the title to the prop- 
erty is in the United States, and that Congress may make any 
disposition of the land belonging to the Government. This 
is undoubtedly true, but the question is not what Congress 
may do, but what they should do with the public land. 

But let us assume the correctness of the decision of the 
Supreme Court, (the committee and Mr. Wilson say that no- 
body proposes to question it,) how then stands the proposition 
of Mr. McGarrahan? It may be thus stated: "I admit that 
Ord's attempt to secure a fraudulent confirmation was a fail- 
ure; I admit that Gomez claimed four leagues in the valley of 
the Panoche Grande, whilst his petition shows he asked for 
only three; I admit Gomez never had a grant of any kind 
from the Mexican Government, and neither he nor I ever oc- 
cupied a foot of land in the Panoche Grande ; but I learned 
that the claim of Gomez had been confirmed by the district 
court; I knew the decree was liable to appeal and reversal, 
but I thought it would not be reversed ; (with Ord to manage 
both sides, he had undoubtedly good reason to come to that 
conclusion.) I bought two leagues, or one-half of the grant. 
Having thus innocently purchased of Gomez two leagues of 
agricultural land in the valley of the Panoche Grande, to which 
my vendor had no title, legal or equitable, I pray the United 
States, on account of this very meritorious action on my part, 
to permit me to purchase, at the minimum price, four square 
leao-ues of mineral land in another and different locality, which 
have for the last fifteen years been occupied by bona fide set- 
tlers, under the mining laws of California, and on which they 
have erected improvements at a cost of four hundred thousand 
dollars; all of which is necessary to my c relief.' ' 



15 

This would be an unvarnished statement of the facts in the 
case, and of the nature of the petitioner's prayer. 

In the report of the committee, frequent allusion is made to 
the Suscol act, and it is referred to as a precedent for this 
bill. This reference is a little unfortunate for the petitioner ; 
for day differs not more from night than do the circumstances 
under which the beneficiaries of that act and McGarrahan 
appear before this body. The Suscol act was passed March 3, 
1863. It gives to bona fide settlers and occupants of the Sus- 
col grant, who had purchased from Yallejo, leave to enter their 
lands, to the extent of their actual occupation, at $1 25 per 
acre, with a proviso that no claim under the act should extend 
to mineral lands. 

The provisions of this act are made general by the act of 
1866, (see vol. 14 Statutes at Large, p. 220;) that is, all pur- 
chasers from Mexican grantees, like the Suscol purchasers, 
are authorized to enter the lands so purchased at the minimum 
price, where they have used, improved, and continued in the 
actual possession of the same; with the same proviso respecting 
the mineral lands. 

Now, if Mr. McGarrahan wants nothing more than was 
accorded to the Suscol grantees, this bill is entirely unneces- 
sary for his relief, since that is already secured to him by the 
general act of 1866. 

But the phraseology of the Suscol act is not the phraseology 
of the McGarrahan act ; nor is there a word in it that he will 
consent to adopt; first, because this " innocent" was not a 
purchaser from a Mexican grantee ; secondly, because he never 
occupied a foot of the land he asks for ; and, thirdly, because 
the terms of that grant would confine the restless spirit of Mr. 
McGarrahan to the "charming pursuit" of agriculture, for 
which he unfortunately seems to possess very little taste. 

But there is still another reason why this act should not 
pass. It is admitted, indeed it cannot be questioned, that the 
title to the land described in this bill, on the 26th day of July, 
1866, remained in the United States. It is indisputable that 
the tract contains lodes of quicksilver and other precious metals. 
On that day the faith of the nation was pledged to vest the 



16 

title to these lodes in a class of citizens to which Mr. McGarra- 
han does not pretend to belong. On that day Congress passed 
an act entitled " An act granting the right of way to ditch and 
canal-owners over the public lands, and for other purposes." 
Of that act the first section reads as follows: 

" Be it enacted by the Senate and Souse of Representatives of the United States 
of America in Congress assembled, That the mineral lands of the public domain, 
both surveyed and unsurveyed, are hereby declared to be free and open to ex- 
ploration and occupation by all citizens of the United States, and those who 
have declared their intention to become citizens, subject to such regulations as 
may be prescribed by law, and subject also to the local customs or rules of 
mines in the several mining districts, so far as the same may not be in conflict 
with the laws of the United States." 

The following is the second section : 

" And be it further enacted, That whenever any person, or association of per- 
sons, claims a vein or lode of quartz, or other rock in place, bearing gold, silver, 
cinnabar, or copper, having previously occupied and improved the same accord- 
ing to the local custom or rules of mines in the district where the same is 
situated, and having expended in actual labor and improvements thereon an 
amount of not less than one thousand dollars, and in regard to whose pos- 
session there is no controversy or opposing claim, it shall and may be lawful 
for said claimant, or association of claimants, to file in the local land office a 
diagram of the same, so extended laterally or otherwise as to conform to the 
local laws, customs, and rules of mines, and to enter sach tract and receive a 
patent therefor, granting such mine, together with the right to follow such 
vein or lode, with its dips, angles, and variations, to any depth, although it 
may enter the land adjoining, which land adjoining shall be sold subject to this 
condition : 

The third section provides that before the patent shall issue, 
the claimant shall pay to the United States the cost of survey, 
and five dollars per acre (McGarrahan wants it at $1 25 per 
acre) for each and every acre contained in the survey. 

Now, the fact is, that one association of claimants, incor- 
porated under the name and style of " The New Idria Mining 
Company," having for fifteen years been in possession of a 
quicksilver lode, and the land extending laterally, in conformity 
with the laws, customs, and rules of the miners of that district, 
the same lying within the limits of the secret survey of the 
Panoche Grande, since the rejection of the claim of Gomez by 
the Supreme Court and the passage of this act, doubly assured 
by both that they would be secure in so doing, has expended 
thereon, not one, but one hundred, thousand dollars, in devel- 
opment and improvements ; and the question is now, whether 
the United States will prefer such purchasers, at five dollars 
per acre, to McGarrahan, at a dollar and a quarter per acre. 



17 

We think the legislature will not be long in choosing between 
the two. 

Again : This being public; land, it may be, and such is be- 
lieved to be the fact, that much of it has been covered by 
school-land warrants purchased from the State of California. 
It has all been surveyed, and is open to such location, such of 
it, at least, as is not included in the mineral district. The 
effect upon such parties of the passage of this bill would be 
to clothe McGarrahan with the power of levying "black 
mail" upon them by threat of litigation, which, in California, 
is both tedious and expensive. 

We conclude by asserting that if McGarrahan has any claim 
upon the United States, derived from his transaction with 
Gomez, that there is no more reason why that claim should be 
discharged by a grant of the reduction-works and improve- 
ments of the New Idria Company, than those of the Gould & 
Curry, or any other association located on the Comstock lode. 

In the appendix will be found some documents, to which we 
beg leave to refer, in support of the statements and views 
herein advanced. 

C. T. BOTTS, 
3 Counsel for the New Idria Mining Company. 



APPENDIX. 



No. 1. 

The following is an extract from the opinion of the Supreme 
Court in the case of United States vs. Gomez, 23 Howard, 
332: 

" Mr. Ord was originally the attorney of Gomez before the board of land 
commissioners, and filed his petition there as such on the 9th February, 1853. 
He was not then district attorney, but he became so on the first of July, 1854 , 
before the land commissioners decided the case against his client. After his 
appointment, and after an order had been obtained, at his instance, to remove 
the cause from the northern district of California to the southern, of which 
he was the district attorney, and whilst the cause was pending in the latter, 
he took from Gomez, for the nominal consideration of one dollar, a transfer to 
himself for one-half of the land in controversy. This Mr. Ord admits in his 
affidavit, presented to this court by counsel. The conveyance to him bears 
date on the 21th of November, 1856. It was acknowledged on the same day 
by Gomez, before a notary public of the county of San Francisco, and was, at 
the request of Mr. Ord, recorded in the county of Merced on the 26th Novem- 
ber, 1857; was also filed for record in the county of Fresno on March 26, 
1858, and again recorded by Mr. Ord in Monterey county the 3d May, 1858. 
A copy of 'that conveyance is- now before us. These dates show that no re- 
cord of the conveyance to him was made until after the claim had been con- 
firmed by the district judge, upon his representation that, as district attorney, 
there was no objection to its confirmation; in other words, that he thought 
the claim a valid claim, and was within the rulings of the court in other claims 
of the same kind. 

" We shall cite the notice in its words; for, as it had been in fact the sub- 
ject of the court's action, and could not have been so without the knowledge 
of Mr. Ord, and without his agency, it devolves upon him the task to disprove 
the declarations of Mr. Hartman of the forgery of the name of the firm of 
Hartman & Sloan to the paper. We ought to remark, however, that Mr. Sloan, 
of the firm, is not shown by any paper to have had any personal agency in the 
matter. The notice is: 'Now, on this day came the parties, the appellant by 
Hartman & Sloan, and the appelee by P. Ord, United States district attorney : 
Whereupon, on motion of the attorney of the appellant, it is ordered that the 
transcript and papers transmitted from the northern district court be filed in 
this court, and that the petition for a review of the same be entered thereon, 
and that the claimant have leave to proceed in said cause, the same as if it 
had been originally filed in this court.' On the same day, a petition was filed 
for a confirmation of the claim. 

" After the confirmation of it in the manner as will hereafter be stated, 
Mr. Sloan, upon being told of the motion, and that it was signed by the firm 
of Sloan & Hartman, but, in fact, as if the style of their firm was Hartman 
& Sloan, made his affidavit under a commission instituted by Judge Ogier, that 
neither as a member of the then firm of Sloan & Hartman, nor otherwise, was 
he ever retained or employed in the case; that he never wrote nor authorized 
to be written any petition or other paper in the case; that he never had seen 
such a petition; that he had never authorized any one to use his own name, 



20 

or that of the firm of Sloan & Hartman, in the case ; and that, if the paper 

was signed as it is represented to be, it had been without any consultation 
with him, or his consent or approbation. 

#■ ■* * * * 

" The motion made for the removal of the cause to the southern district is 
said to have been signed by E. W. F. Sloan, Esquire, and presented by him in 
open court; and the order said to have been passed recognizes that as a fact. 
On the same day the firm of Hartman & Sloan is reported in the transcript to 
have filed a notice of appeal with the clerk of the district court for the southern 
district. The paper has all of the formality and substance which such a paper 
should have, but Hartman & Sloan deny the fact of having had any agency in 
making such a motion ; and these separate affidavits would be sufficient to sus- 
tain their disclaimer, were it not, so far as Hartman is concerned, that his sub- 
sequent conduct in the case shows a connection between himself and Mr. Ord, 
which throws suspicion upon both ; and that is aggravated bj Hartraan's depo- 
sition, by that of other persons, and by the narrative given by Mr. Ord of his 
conduct in the suit.. 

" Hartman then makes his affidavit, that he had no knowledge who made and 
caused the petition to be filed, nor by whose authority and direction the same 
was done. But he states that, whilst attending the June term of the southern 
district court in 1857, Mr. Ord, then United States district attorney, asked him 
if he would do him the favor to present a claim to the court for confirmation, 
stating it was a case in which there would be no opposition on the part of the 
Government. That, not suspecting there would be anything wrong about a 
claim to which the Government had no objecdon, he consented to do. so ; that, 
on the same day, the court being in session, and he being seated at the bar table, 
Mr. Ord passed to him the transcript in the case of Gomez and the United 
States, which he read to the court without any remarks, supposing it to be the 
case of which Mr. Ord had spoken to him; that after he had finished reading 
it, Mr, Ord remarked to the court that there was no opposition on the part of 
the Government to a confirmation ; whereupon, the court replied that there 
being no objection, the claim would be confirmed as a matter of course. Mr. 
Hartman continues his narrative of his further connection with the case and 
with Mr. Ord, six months after, at the December term of the court, when it was 
held at Los Angeles. He says that when Mr. Ord remarked to him that it had 
been omitted, at the time of the confirmation of the claim, to have a decree 
signed by the judge ; that Mr. Ord requested him to draw a decree, and to pre- 
sent it to the judge, to be signed nunc pro tunc. He says that he did so, without 
knowing or suspecting that Mr. Ord had an interest in the land claimed by 
Gomez. This statement by Hartman of his agency in the confirmation of the 
claim, and in getting a decree upon it six months afterward at the instance of 
Mr. Ord, is denied by the latter in his affidavit, excepting as to his declaration 
to the court that the Government had no objection to the confirmation of the de- 
cree. The latter he admits in stronger terms than have been given. We shall 
u-e the affidavit for other purposes, and will have it printed in connection with 
this opinion, in justice to Mr. Ord, that the relations between himself and Mr. 
Hartman may be properly estimated from their respective declarations concern- 
ing it, only remarking now that there is proof that Mr. Hartman had subse- 
quently declared himself to have been the attorney of Gomez in the case ; that 
he had been so in all that he had done in the case ; and that he had charged 
and demanded a fee for his services. It is not necessary for us to_ attempt to 
reconcile these differences, but it has certainly turned out unfortunately for Mr. 
Ord, in raising a violent presumption, from the manner in which they acted in 
the cause, that there was a concert between them to reverse the decision of the 
commissioners, and to obtain a decree in the district court for the claimant." 

The court then sums up the facts of the case as follows : 

" The record upon which this case was docketed and dismissed, in connection 



21 

with the book of exhibits sent to this court by Judge Ogier, establish, in our 
view, the following facts : 

" 'That Mr. Ord became the purchaser of half the land in controversy from 
Gomez, the claimant, when he was the district attorney of the United States ; 
that whilst he was district attorney he prepared, in his own hand, the paper 
signed by S. 0. Crosby for the removal of the cause from the board of land 
commissioners to the district court; that Mr. Ord did not officially, as district 
attorney, represent the United States in the case in the district court in any 
one particular, but allowed it to be done by others who were interested in es- 
tablishing the claim of Gomez, to whom he gave his official confidence, and who 
are shown by the record not to have been the retained attorney of Gomez; that 
he permitted a judgment to be taken against the United States without argu- 
ment or the production of proof to establish the validity of the claimant's 
right to the land, by saying to the court, in his official character, that the 
United States had no objection to the confirmation of the claim. And it is 
established by the record itself that no appeal has been given to the United 
States by the court below. Mr. Ord admits that he relies upon the declaration 
only of the person to whom he confided the order which he drew for an appeal 
that it had been granted by the court. Under such circumstances we conclude 
that no appeal had been granted; that the cause was not before us when the 
appellee made his motion to docket and dismiss it.' * * * * All that we 
shall now do v/ill be to correct any irregularity in the order given by this court 
in a case in which we believe it had no jurisdiction, and because the circum- 
stances of it disclose that the judgment in the court below had been obtained 
by contrivance and with the consent of the district attorney, in violation of 
his obligations to the United States, from which he necessarily anticipated a 
benefit, being then owner of half the land in controversy-" 

The court then proceed to cite two English cases to show 
that an appellate court may, upon motion, order a judgment 
rendered upon appeal to be amended, vacated, or discharged, 
when such judgment has been obtained by suppression or 
misrepresentation. 

Thus stood the case in 1859. The following is even a 
more full account of the history of this case than any yet 
given. It is the statement of the Reporter, taken from 
3 Wallace, 752, (December Term, 1865.) 

" This was an appeal, by the United States, from a decree of the district 
court for southern California, under the act of March 3, 1851, to settle private 
land claims in California,, reversing a decision of the board of land commis- 
sioners, and confirming to one Vincente Gomez a claim for a tract or rancho 
called the Panache Grande. 

" So far as the title involved in the claim of Gomez was concerned, the case 
could embrace nothing, of course, but the question whether the title was shown 
or not; whether the claim was well founded, or the reverse of it? 

"As respects this matter of the claim: The petition of the claimant to the 
governor was for a place described as Panoche Grande, of the extent of three 
square leagues. Appended to it was the customary infdrme; but there was no 
concession or grant, nor sufficient evidence of the issue of a title. It was 
asserted, but not proved, that the claimant had obtained the map in the record 
from the proper officer. One witness only, of several examined, alleged that 
he had ever seen the grant, and no possession was shown. A neighbor of 
Gomez, who had lived for twenty years in the vicinity of the land claimed, and 
had known Gomez and his father before him, had never heard, as it appeared 



22 

afterwards, of Gomez having any land thereabouts. The commissioners re- 
jected the claim. Whether the district court, on appeal, if it had examined the 
case and been acting advisedly, would have done the same, can only be infer- 
red. It did not, however, examine the case, nor act advisedly. The person 
who had been the counsel of Gomez, one Ord, having become the representa- 
tive at law of the United States as the district attorney for that part of Cali- 
fornia, entered into a bargain with Gomez to allow a reversal, by the district 
court, of the decree of the board, and a consequent confirmation of the claim, 
on condition of receiving himself a portion of the land; which afterwards he 
did receive. 

" By such an abuse and betrayal of his official trust, as the reporter under- 
stood the case, the decree above-mentioned was obtained. So far as Gomez was 
concerned, therefore, whatever title he had derived no validity from the decree. 

" The allegation was, however, that the land was now owned by McGarrahan, 
who purchased it in December, 1857, after a decree of confirmation was pro- 
nounced by the court, who, having had no suspicion that there was any thing 
fraudulent in the judicial proceedings by which the title was confirmed, was not 
affected by Ord's fraudulent act, and who stood in the position of an innocent 
purchaser, without notice.* 

"Representing this person, and desiring to get the case dismissed from the 
court, as the first step in establishing his title, Messrs. Cashing and Stone, in his 
behalf, set up that this court had no jurisdiction of the case. Urging, with 
what force they could on the evidence, McGarrahan's title as a bond fide pur- 
chaser for value of a title regular on its face, they set up further, pressing it 
strongly, that the court had no jurisdiction to entertain the appeal : 

" 1. Because the appeal was not taken within five years from the date of the 
decree. 

"2. Because there was no citation. 

" 3. Because the appeal was not entered at the term of this court next suc- 
ceeding the appeal. 

" 4. Because the pretended appeal, by virtue of which this entry was made, 
lost all its legal effect, by reason of the subsequent proceedings in the district 
court, on the part of the United States district attorney. 

" 5. Because the decree appealed from was not a final decree. 

" To understand these grounds, a narrative must be borne with by the reader: 
' longce sunt ambages;' complicated and dull, perhaps, as well The history has 
been once told in the reports of two years since. But not to refer the reader for 
half the case to a volume which he may not have at hand, the reporter must 
request him to renew his grief, and read it all again. 

" The case was heard in the district court of southern California, June 5, 
1857, on which day the court delivered its 'opinion,' confirming the claim for 
three leagues, and ordering 'a decree 1 to be entered up, in conformity with the 
opinion. But no decree was entered at that time. Was it that a thing begun 
in fraud found its author infirm of purpose, and was followed by irregularity? 
The cause did not appear. On the 7th January, 1858, a decree in extenso was 
filed, describing the land confirmed as ' three' leagues. The decree ended thus : 

" And it appearing that, on the 5th June, 1857, the lands had been confirmed 
by the court to the said claimant, and it having been omitted to sign and enter 
a decree therefor, at the date last aforesaid, it is ordered that the same be done now 
for then" 

" On the 4:th of February of the same year, the court ordered that the claimant 
have leave to amend this decree by substituting another in its stead." 

" Gomez did accordingly, on the day following, procure another decree to be 
entered. It was much like the other, giving the name of the tract and bound- 
aries, as it did ; describing it, however, as containing four leagues. This decree 
ended thus : 

* Note. — It appears that the question of McGarrahan's bein?; an innocent purchaser, the string 
upon which he harps before Congress, was made and submitted to the Supreme Court. The 
decision of that tribunal was not favorable to the appellee. C. T. B. 



23 

" It appearing that heretofore, to wit, on the 5th June, 1857, &c, the claim 
in this case had been confirmed by the court, but that it had been omitted by 
the court to sign the decree of confirmation at the time the same was made — 

" It is, therefore, further ordered by the court, that the same be signed now as 
then." 

" In due time, the sin of the district attorney' found him out. He withdrew 
from the country ; and on motion of the United States it was, on the 21st March, 
1861, ordered by the court, (Ogier, J., sitting) : 

" That all proceedings heretofore had in the cause be set aside, and the cause 
be put on the calendar, and set for trial de novo, according to law. 

"But, behold a new incident! Mr. Justice Ogier died. Another judge sat 
in his seat, and he, thinking that, after the lapse of a year no power had vested 
with his deceased brother to alter or modify a decree, except to correct some 
clerical error, ' with great reluctance,' on the 4th August, 1862, vacated the 
order of March 21, made by his predecessor. 

" The case thus stood, a decree entered on the 1th January, 1858, (or possibly 
on the 5th of February following) as of the 5th of June, 1857. 

" At the same time, on the 25th August, 1862, on motion in open court — no 
citation having been issued — an appeal was allowed the United States ' from 
the decision and decree of this court confirming the claim of the claimant herein ;' 
and on the 6th of October following, the district attorney, reciting that the 
claimant was ' desirous of moving the court to set aside the order for appeal,' 
agreed, by entry made on the minutes, that all proceedings should be stayed 
till the next term, 'so as to give the claimant an opportunity to make such 
motion.' On the 1st December, 1862, a motion to vaeate the appeal was made 
and heard, and on the 4th the order for appeal was vacated ; the grounds of 
the order being that the decree having been entered mine pro tunc, took effect 
as from June 5, 1857, and not from January 7, 1858 ; thus, of course, making 
more than five years to the 25th of August, 1862, when the appeal was 
allowed." 

" And now came an episode ; one of a sort rather unusual in judicial doings. 
The clerk of the district court refused to give a copy of the record. The appel- 
lants, represented by Mr. Goold, of the California bar, ' special counsel of the 
United States,' had asked for a copy on the 10th of October, after the appeal 
was allowed, and the clerk had promised to give it to him. 

"Not getting it at the promised time, he asked for it again on the 2d of 
December ; the clerk now informed the counsel ' that he had changed his mind 
on the subject, and would not prepare or deliver a transcript in said cause.' 
Mr. Goold ' offered to pay said clerk his customary fees for a transcript of said 
record, but said clerk persisted in his refusal to prepare one.' 

" In anticipation, it would seem, of what was about to happen, the Congress 
of the United States had intervened, and on the 6th of August, 1861, passed a 
statute, enacting : 

" ' That the district attorney of the United States of any district in California 
may transcribe and certify to the Supreme Court of the United States the re- 
cords of the district court of his proper district in all land cases wherein the 
United States is a party, upon which appeals have been or may be taken to the 
Supreme Court of the United States; and records so certified by such district 
attorney, under his hand, and filed in the Supreme Court of the United States 
shall be taken as true and valid transcripts to the same intent and purpose as 
if certified by the clerk of the proper district.' 

" McGarrahan, in turn, applied 6lh April, 1863, to the district court [Haight, J.] 
for an injunction on the clerk and attorney to restrain them from making out 
any transcript; the ground of the application being that the copy asked for 
was for the purpose of an appeal, and that no appeal was pending. The 
court refused an injunction, as not a proper remedy, but — observing that no 
appeal was pending, or from the lapse of time ever could be taken, and that 
the district attorney had no power to certify copies under the act of Congress, 
except there was one, and that a certificate would be null, accordingly — declared 



24 

that procuring copies on behalf of the United States in such a case was a fraud 
on the Government, and not to be tolerated, and that 'in this case, as in most 
litigations which had come under his observation, private parties were seeking 
their own ends, and conducting litigations at the expense of the United States, 
wherein the final result was matter of entire indifference so far as the interest 
of the Government was concerned.' 

"The attorney general, Mr. Bates, in person, now interposed. He wrote to 
the judge, and by letter sent to Mr. Goold at San Francisco, directing him to ob- 
tain a copy, calling on the district attorney of the United States at San Fran- 
cisco for any needed ' aid.' Provision was again made for the clerk's fees. Tel- 
egrams were sent across the continent. But it was in vain. Neither request, 
entreaty, demand, nor offered fees besides, procured the record. 

" The district attorney accordingly set to work to prepare and certify a roll 
himself. But the custody of rolls was not with him. They were in the power 
of the clerk, as had been his own sign manual and official seal. The district 
attorney could control the one no more than he could control the others. He 
happened, however, to possess copies of all the parts of the record except the 
transcript sent up by the late board of land commissioners. 

" Putting all in proper sequence, he prepared a transcript of a record, certi- 
fying ' that the foregoing one hundred and seven pages are a full, true, and 
correct copy of all the proceedings, entries, and files in the district court for 
the southern district of California, except the transcript from the late board, &c, 
in the case of the United States vs. Gomez, No. 393, for the claim called Pan- 
oche Grande? 

" On this record the case came here, and was docketed in February, 1864." 
• 

The opinion in this case was delivered by Mr. Justice 
Clifford. The intermediate points were all decided against 
the appelee. As to the merits of the claim of Gomez, they 
are disposed of in a single page. This portion of the 
opinion is quoted at p. ^of the brief. 

It is this opinion winch Mr. McGarrahan assails in his 
pamphlet. All we have to say is, that it was an unanimous 
opinion. 



No. 2. 



In the petition of Vincente Gomez to the board of land 
commissioners, filed February 9, 1853, the tract claimed is 
described as being bounded " on the south by the lands of 
Francisco Arias ; on the north by the lands of Julian Ursua 
and the low hills; aud on the west by the barren hills, as ex- 
plained by the map hereto annexed." ' (See p. 21 of Judiciary 
report, March 26, 1867.) The map referred to "places the 
rancho of Arias on the west instead of the south. In his 
petition to the Governor of California, dated Monterey, March 
13, 1844, Gomez asks for " the place known by the name 



25' 

of Panoche Grande, bounded on the north by Don Julian 
Ursua ; on the south by the Serranias, (mountain range ;) on 
the east by the Valle de los Tulares ; and on the west by 
Don Francisco Arias." (See p. 28 of same report.) In his 
application to the board the tract is described as containing 
four square leagues ; in his petition to the Governor he asks 
for three square leagues. The decree of confirmation of the 
district court describes the tract as it is described in the pe- 
tition of Gomez to the Governor of California. It is not 
pretended that the surveyor general had any other authority 
for making a survey of the Panoche Grande, or any guide in 
making such a survey, except what is contained in this de- 
cree. We see, then, that the tract confirmed to Gomez was 
to|adjoin Ursua on the north, and Arias on the west. Curi- 
ous to know whether these plain and unmistakable directions 
had been regarded in the secret survey of September 11, 
1862, we made inquiries of the Commissioner of the General 
Land Office, to which we received the following reply : 

" Department of the Interior, 

" General Land Office, May 18, 1868. 
" C. T. Botts, Esq., present. 

"Sir : Your letter, without date, to Hon. W. M. Stewart, U. S. Senate, was 
referred to this office 16th instant, in which you request information as to the 
relative positions of the survey of the rancho in California called " Keal de los 
Aguilas" — Francisco Arias and Saturnino Cariaga original claimants — and the 
survey of the unconfirmed claim called " Panoche Grande" — Vincente Gomez 
original claimant. 

" In reply, I have to state that the survey, dated August 25, 1866, of the 
rancho " Real de los Aguilas," as laid down on the connected map of California 
accompanying the annual report of the office for the year 1866, is in townships 
13 and 14 south, of ranges 7, 8, and 9 east, Mt. Diablo meridian. While the 
survey, dated September 11, 1862, of the "Panoche Grande" is in townships 
16 and 17 south, of range 11 east, and townships 17 and 18 south, of range 12 
east, of the same meridian. 

" In other words, said map shows the northwest corner of " Panoche Grande" 
survey to be about twelve miles south and about the same distance east of the 
southeast corner of the survey of the rancho " Real de los Aguilas." 

"It is proper, however, to state that our records show Francisco Arias as the 
original claimant in another case before the land board for the place designated 
"Arias Ranch." In this latter case, however, the claim for confirmation was 
rejected by said board February 27, 1855, but whether it was afterwards con- 
firmed by the judiciary is not known to this office, no return in the case having 
been received here, and hence we are unable to designate its locus. 

" It is in place also to state that the survey of the Rancho " Real de los 
Aguilas" is one' under the act of Congress approved 1st July, 1864, (Statutes 
vol. 13, p. 332,) requiring the approval of the Commissioner of the General Land 
Office to become final ; and which survey has not been passed upon definitely 
by this office. " Very respectfully, your obedient servant, 

" JOS. S. WILSON, Commissioner." 
2 



26 

It appearing from the above that there might be a rancho 
other than the Los Aguilas" referred to as bounding Gomez 
on the west, we addressed further inquiries to the Commis- 
sioner, which called forth the following communication: 

" Depaktment of the Intekiok, 

" Geneeal Laud Oeeice, May 22, 1868. 
"C. T. Botts, Esq., present. 

"SiE: Referring to your letter of yesterday, I enclose herewith an extract, 
marked A, from the petition of Adolph Corrill and Baltazar Toche, in case No. 
753 of the board of California land commissioners, as the same is recorded on 
p. 150, vol. 2, of the record of petitions in this office. 

"In reply to the inquiry under second head in your letter, I have to state 
that there is on our files the survey of a rancho called ' Panoche de San Juan y 
los Carrisalitos,' situated in township 11 south, of range 9 east, and townships 
12 and 13 south, of ranges 9 and 10 east, Mount Diablo meridian, California, 
which is the only case on our records in which Julian Ursua appears as original 
claimant from the Mexican Government. 

" As stated in our letter to you of the 18th inst., the survey dated 11th Sep- 
tember, 1862, of the Panoche Grande, is in townships 16 and 17 south, of range- 
11 east, and townships 17 and 18 south, of range 12 east, Mt. Diablo meridian. 
"Very respectfully, your obedient servant, 

"JOSEPH S. WILSON, Commissioner:' 

Enclosed in the above was the following: 

(Copy.) 

"A. 

"No. 763.— PETITION OF ADOLPH CORRILL AND BALTAZAR TOCHE. 

"TV) the Honorable Commissioners to settle Private Land Claims in California : 

" The petition of Adolph Corrill and Baltazar Toche respectfully shows, that 
on the 10th of December, 1839, Don Jose' Castro, prefect of the first district of 
California, by virtue of the authority in him vested, granted to Francisco Arias 
a tract of land called the " Arias ranch," in the present county of Monterey, 
near the mission of San Juan Bautiste, bounded by the Monterey road, the 
ranches of Don Manuel Larios, Don Santiago Stoches and Don Angel Castro, 
containing about one league, more or less, and more particularly described in 
the title, map, and act of possession herewith, to be filed and presented in the 
case, additional time to prepare translations of which the petitioners pray 
may be granted them. * * * " 

To these communications from the Commissioner of the 
General Land Office we annex the following certificate of 
the Hon. Delos R. Ashley, of the House of Representatives: 

" I hereby certify, that for several years I resided in the county of Monterey, 
California, and am familiar with the Mexican ranches in that part of the State. 
I have examined the description of the ' Arias ranch' referred to in the petition 
of Corrill and Toche, and have frequently visited it. It lies west by north of 
the ranch of Ursua and of the ' Los Aguilas,' and is still farther removed 
from the survey of the ' Panoche Grande' than either of them, being within 
two miles of San Juan. " D. R. ASHLEY. 

" Washington, May 25, 1868." 



27 

Thus it will be seen, that by the secret survey of Septem- 
ber 11, 1862, the surveyor, instead of locating Gomez di- 
rectly on the south of Ursua and on the east of Arias, as 
directed bv the decree of confirmation, starts at a point 
twenty miles south of the southern line of Ursua and twelve 
miles south and as many east of the southern line of Arias, 
and then extends the survey twelve miles south, so as most 
obligingly to take in the quicksilver mines of San Carlos. 
"Who, with these facts before his eyes, can have any faith in 
the integrity of this survey? 



No. 3. 



As to the failure of McGarrahan in his attempts to obtain 
a patent based upon the survey of September 11, 1862, Mr. 
Wilson, in his report of May 8, 1868, on behalf of the Ju- 
diciary Committee of the House of Representatives, says : 

" As seen after nine years of litigation, Mr. McGarrahan, the present claim- 
ant, succeeded in acquiring two distinct confirmations of his title.* It was then, 
in accordance with the act of Congress of June, 1862, he applied to the United 
States surveyor general of California for a survey of the said tract of land, and 
which officer caused the survey to be made and approved September 11, 1862. 
This survey was transmitted immediately thereafter to the General Land Office, 
and a patent for the property was demanded. 

" 2. Here, again, he was confronted by the New Idria Mining Company, before 
referred to. The Secretary of the Interior at that time, (Hon. Caleb B. Smith ) 
after argument in the case, ordered the patent to issue. 

" Thus, again, for the third time, the title to the Panoche Grande was found to 
be in Mr. McGarrahan. 

" Some unknown cause delayed the execution of this order, and the patent 
was not issued. This neglect, or refusal, was persisted in throughout the re- 
mainder of Mr. Secretary Smith's term. The matter was then brought to tb s 
notice of Mr. Usher, the new Secretary, before whom it was again argue 1 . 
and by whom a patent was directed to be issued. Neither the order of 
Mr. Smith nor Mr. Usher was obeyed, for some reason not yet divulged or 
ascertained. 

" For the fourth time, the title of Gomez and his grantee was decided to be 
good and available in law. A request was then made by the claimant of Presi- 
dent Lincoln, that he would make an examination of the case, and determine it 
upon its merits. This he consented to do. Printed briefs were laid before him, 
and upon full consideration of all the facts and circumstances, he directed the 
Secretary of the Interior to cause a patent to issue to Mr. McGarrahan. And 
thus, for the fifth time, Mr. McGarrahan was declared to be entitled to the pro- 
perty or rancho, and that neither the United States nor any other person have 
lawful claim to the same. 

* Note. — The two confirmations here referred to were those procured from the district court by 
the connivance of Ord. 



28 

" In accordance with this order of the President of the United States to the 
Secretary of the Interior, a patent was actually made out, but, for reasons not 
fully explained, never delivered to him for signature." 

To furnish the explanation, so much desired by the com- 
mittee, of the reason why the patent was withheld from Mc- 
Garrahan, we make the following extracts from a report of 
the same committee, submitted by Mr. Lawrence March 26, 
1867. The first is the reply of the Commissioner to the note 
of the Secretary of the Interior directing the issuance of the 
patent. It runs as follows : 

" General Land Office, January 3, 1863. 

" Sir : I have to acknowledge the reception of the decision, bearing date De- 
cember 29, 1862, of Secretary Smith, in the case of the Panoche Grande claim 
in California, which is the subject of my report to the department bearing date 
the 29th of October last, and reported against in enclosed Ex. Doc. No. 84, first 
session 36th Congress, H. P., page 38. 

" In that decision the Secretary in substance has held — 

" 1st. That the decree of the district court confirmatory of the title has become 
final and beyond appeal ; and, 

" 2d. In regard to the survey fixing the locus, the said decision declares as 
follows: 'The act of June 14, 1860, which required the surveyor general to 
publish for a given time the fact of the survey, with a view of affording toper- 
sons interested an opportunity to contest the boundaries fixed by the survey, is 
directory to that officer.' 

" ' The law directs the proceedings before the survey shall be reported to the 
General Land Office. The survey having been reported in this case, the pre- 
sumption arises that the surveyor general has performed all the prerequisite 
duties joined by law ;' and further, as follows : ' Besides, by the law of June 2, 
1862, the proper officers are required to survey such grants upon the application 
of the claimants, they paying or securing the expense, and such survey is de- 
clared to be but prima facie evidence of the true location of the land claimed 
or granted.' 

" In regard to that portion of the premises upon which the Secretary raises 
the presumption that the surveyor general has done his duty by making publi- 
cation of the survey as required by the act of June 14, 1860 — acts 1859 and 
1860, page 33 — so that opportunity may be afforded by notice for appeal to be 
taken from the locus fixed by the survey, I have the honor — 

" First, to invite your attention to the enclosed letter, dated September 11, 
1862, from that officer, negativing the presumption of publication of notice 
pursuant to said act of June 14, 1860, by declaring that ' this survey was exe- 
cuted under the act of Congress approved June 2, 1862.' 

" Second, that the said act of June 2, 1862, does not order the issuing of a 
patent; and, 

" Third, that the act of March 3, 1851, vol. 9, page 633, which delegated 
authority for the adjudication of claims in California, (the law under which the 
Panoche Grande title is held by the Secretary's decision to be finally confirmed 
by decree of the district court,) expressly requires, as the basis of a patent, ' an 
authentic certificate of such confirmation, and a plat or survey of the said land, 
duly certified and approved by the surveyor general of California.' 

" The invariable practice under law, in the case of finally certified claims, is 
to require such 'certificate of confirmation' and approved plat with certificate, 
that the publication has been made according to the law of June 14, 1860. 

" The question therefore arises, whether the said decision of the Secretary 
designs dispensing with those prerequisites, and whether it contemplates the 



29 

summary issue of the patent upon the said plat of survey reported, as made by 
the surveyor general under the act of June 2, 1862, although that law does not, 
as stated, order the issue of the patent. 

"Further: It will be observed that the survey of the Panoche was made 
July, 1862, and that the third section of the act of Congress, approved May 30, 
1862, for reducing 'the expenses of the survey and sale of the public lands of 
the United States,' expressly declares ' that patents shall not issue for any such 
private claim until the cost of survey and platting shall have been paid into 
the treasury of the United States by the claimant.' 

" Now, we have no information from the surveyor general as to whether the 
cost of said survey has been paid or provided for by the claimant. 

" As the Hon. J. A. McDougall has, however, urgently, in person, pressed the 
immediate issue of the patent, claiming it under the aforesaid decision and com- 
mand of the head of the department, I deem it my duty to bring the foregoing 
exceptions to your attention, and ask further instructions in the matter touch- 
ing the question as to whether or not it is the design of the department that the 
patent shall issue on the papers as they now stand. 

" With great respect, your obedient servant, 

"J. M. EDMUNDS, Commissioner. 

" Hon. Seceetaey of the Inteeioe." 

To this the Secretary of the Interior (Mr. Usher had now 
succeeded Mr. Smith) replied : 

" I think, therefore, that the decision of my predecessor, directing the patent, 
was correct, and that' it should issue. I would advise you, however, to cause to 
be inserted in the patent, by way of recital, the fact that it was issued upon a 
survey made under the act of June, 1862, and also, by way of greater caution, 
to insert a provision that the description of the land therein conveyed was to 
be taken against the United States, or any person making claim to the land, as 
prima facie evidence only of the true location of the land granted, and to 
be modified or avoided in that respect if the same should be found to be 
erroneous." 

And in this shape the patent, no doubt, would have issued, 

had t-his direction not been countermanded by the following 

order : 

" Depaetment of the Inteeioe, Washington, March 13, 1863. 
"Sir: The Attorney General has notified this department that he intends to 
have the case of the land claim of Vincente Gomez, known as the Panoche 
Grande, brought before the Supreme Court of the United States for review. 
Under these circumstances you will suspend the execution and delivery of a 
patent, under the decision of this department of the 4th instant, until further 
advised in the case by the Secretary. 

" I am, sir, very respectfully, your obedient servant, 

" W. F. OTTO, Acting Secretary. 
" The Commissioner of the General Land Office." 

This is only another instance of the effect of time upon 
the frail memory of man. The committee had evidently, 
on the 8th day of May, 1868, lost all recollection of the facts 
detailed in their own report of March 26, 1867. 






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